SD v HM Advocate [2015] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 83

HCA/2015-001196-XC

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRODIE

APPEAL AGAINST SENTENCE

S D

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Dow; Faculty Services Limited

Respondent: McSporran AD; Crown Agent

19 August 2015

Introduction
[1] This is the appeal against sentence at the instance of SD, who, at a trial diet on 26 February 2015 at the High Court at Glasgow pled guilty to a charge in the following terms:

“(002) on 3 October 2012 at [an address] you SD, did assault M, your daughter, born 21 August 2012, c/o Police Service of Scotland, Clydebank, then aged 6 weeks and did seize her on the body, shake her, throw her against a surface or by means to the Prosecutor unknown, all to her severe injury, permanent impairment and to the danger of her life”

[2] Having heard the narrative of the facts from the advocate depute the sentencing judge adjourned the matter in order to obtain a criminal justice social work report in respect of the appellant. On 31 March 2015 she sentenced the appellant to seven and a half years imprisonment. In her report to this court, she explains that had it not been for the utilitarian benefit she saw in the plea, albeit that it had been tendered very late, she would have imposed a sentence of nine years imprisonment. Her discount was accordingly of the order of 15%.

Circumstances of the offence

[3] The appellant is 23 years old. He is married to LD, also aged 23 years. Although they lived separately the appellant frequently stayed over with his wife, at her flat. The victim, their daughter, was born on 21August 2012. She was delivered naturally, there were no complications and mother and baby were discharged on 23 August 2012. She was a healthy baby. She was around six weeks old at the time of the offence.

[4] On 2October 2012, having been cared for by her maternal grandparents during the day, the baby was returned to LD and the appellant around 8:30pm and put down for the night shortly afterwards. The baby was restless through the night and her mother was up for much of the night with her. At around 8:00am when the baby awoke again and was again unsettled, LD asked the appellant to look after the baby in order that she could get some sleep. The appellant took the baby into the living room.

[5] At around 8:45am the appellant woke his wife to tell her that the baby had been sick after feeding with a bottle. It was agreed that the baby would not have been capable of feeding if she had sustained serious brain injury. At 9:30am the appellant again woke his wife and told her that he could not rouse the child. An ambulance was called shortly thereafter.

[6] In submissions on behalf of the appellant to the sentencing judge it was accepted that he had become frustrated with the baby, had lost control, had shaken her and then had thrown her down on to a couch. He had not been able to recall exactly what had happened and he could not explain his conduct to the police or to the social workers who prepared the background report. The agreed opinion of the medical experts was that the primary mechanism for the injuries found was shaking, with or without a subsequent impact from being thrown.

[7] On admission to hospital the child was clearly very ill. CT scans showed bleeding in the brain. She was intubated to help with her breathing and transferred to the Royal Hospital for Sick Children in Glasgow where she remained in the Paediatric Intensive Care Unit for six days. An MRI scan carried out at the same hospital on 8 October 2012 confirmed that the child had sustained extensive damage to the brain caused by hypoxia. On 9 October 2012 examination concluded that the baby had sustained extensive hypoxic/ischaemic brain injury, multi compartment subdural haemorrhages and extensive retinal haemorrhages in her left eye – a pattern of haemorrhage associated with abusive head trauma.

[8] The injuries sustained were extremely serious and could very well have been fatal. Her mother was told at the hospital that the baby could die.

[9] The consequences of the assault were catastrophic for the victim. The sentencing judge summarised the expert medical assessment of the child as follows:

She is left with severe physical disability whereby she is not able to sit unaided; she has restricted movement in her upper limbs and suffers from extensive spasms which stiffen her whole body
She needs constant and intensive care as she has no independent mobility. She will always require some form of mobility aid such as a wheelchair and assistance
She can make sounds but cannot speak and will never be able to speak
She has difficulty feeding, is unable to instinctively swallow and cannot take solid foods. It is possible this may never significantly improve
She will always have significant disability and is most likely to suffer from cerebral palsy
Her significant development and neurological problems are more than likely to continue
Her life expectancy is likely to have been reduced

The child’s mother and immediate family will be burdened with her care throughout her life.

The approach of the sentencing judge

[10] The sentencing judge, in her report to this court, records that it had been submitted to her in mitigation that the background was one where the appellant had involved himself in the care of the baby. There was no suggestion of any problem or history of abuse or neglect. At the relevant time, the appellant had been tired and in pain from a tooth abscess. He was frustrated and lost control. He shook the baby and threw her down onto a couch. This was a momentary loss of control and a “one off” event. The appellant had not intended to cause serious harm. There was no wickedness in his actions. He had no history of violence. The sentencing judge had regard to these mitigating factors. However, she viewed this as a deliberate and violent assault using a degree of force which was obviously likely to cause serious harm to a six week old baby. It was difficult to conceive of a more vulnerable victim. The appellant was her father. The consequences were catastrophic and had very significantly reduced the quality and probably the length of the child’s life. The effect upon her family and particularly her young mother could only be devastating. Balancing these factors the sentencing judge took the view that it was necessary for her to impose the lengthy sentence of nine years imprisonment, reduced to seven and a half years to reflect the utilitarian value of the guilty plea.

Submissions on behalf of the appellant

[11] Miss Dow, who appeared on behalf of the appellant before this court, accepted the catastrophic nature of the injury to the child, as summarised by the sentencing judge in her report. However, Miss Dow challenged the sentencing judge’s characterisation of what the appellant had done as being “obviously likely to cause serious harm”. It was Miss Dow’s submission that it would not have been apparent to a layman that such serious harm would be caused by the degree of force which it was likely had been used here. This had been a short period of shaking by a “hands on” father where there was no history of previous abuse of the child. This was an incidence of a momentary loss of control lasting a few seconds on the part of a young man who was a loving father and who had not previously served a custodial sentence. In these circumstances a starting point of nine years imprisonment was clearly excessive. On no view could this be seen as a case where the wickedness of the appellant was commensurate to that of the accused in HMA v IWKM 2003 SCR 499 or RB v HMA 2004 SCCR 443. Rather, this was a case which was essentially indistinguishable from that of SS v HMA [2015] HCJAC 63 where the Appeal Court had selected seven years imprisonment as an appropriate sentence before allowing a discount in respect of a guilty plea.

Decision

[12] On sentencing in a case of assault assessment of the seriousness of the offence will usually involve consideration of two potentially independent factors, the culpability of the offender’s act and the severity of the consequences of that act. We say potentially independent because the likelihood of it having adverse consequences is relevant to the judgment as to the culpability of a particular act. In this case, the consequences of the assault on the child were catastrophic. We accept that they were unintended by the appellant. However, we do not accept Miss Dow’s submission that the risk of some degree of serious harm to a young baby consequent upon a single incident of shaking is not such as to be obvious to a layman. The sentencing judge says in her report that it is difficult to conceive of a more vulnerable victim than a six week old baby. We can only agree and we would see that as being clear to any parent, however inexperienced that parent may be.

[13] We therefore consider that the sentencing judge was correct to approach this case as one which involved a significant degree of culpability as well as a catastrophic result. She was entitled to take the view that only a significant custodial sentence was appropriate. However, she was not addressed on the issue of comparative justice and the cases of IWKM and RB. She passed sentence prior to the decision of this court in SS. Just as the court in SS considered that a starting point of ten years did not sit well with what had been decided in IWKM and RB we do not consider that a starting point of nine years is consistent with what was held to be appropriate in these cases. We accept Miss Dow’s submission that there are parallels to be drawn between this case and that of SS but we take the view that this is a more serious case than SS. In the present case there was evidence that the appellant had shaken the baby and then violently thrown her down onto a couch. Whether or not the throwing of the infant onto the couch exacerbated her injuries, it pointed to an act of real aggression on the part of the appellant. We see that as something which requires to be reflected in the sentence imposed. Accordingly, we shall quash the sentence imposed on 31 March 2015 and impose an alternative sentence of six years and nine months. We have arrived at that figure by taking a starting point of eight years imprisonment and discounting that by a similar percentage to that adopted by the sentencing judge.